IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

United States of America, :

Plaintiff, :

v. : Case No. 2:10-mj-0431

Gary A. Baird, Jr, : MAGISTRATE JUDGE KEMP

 Defendant. :

ORDER

The above defendant appeared before the Court for a

preliminary hearing and a detention hearing on July 15, 2010. 

The United States presented evidence on both issues, and

defendant presented no argument on the question of probable

cause. The Court then found that probable cause existed with

respect to the criminal charges contained in the complaint. For

the following reasons, the defendant will now be detained without

bond pending trial.

Mr. Baird was charged with two different offenses related to

images of child pornography found on his computer after the

execution of a search warrant - the receipt of child pornography

using any means of interstate commerce, in violation of 18 U.S.C.

§2252(a)(2), and the possession of such child pornography, in

violation of 18 U.S.C. §2252(a)(4)(B). The testimony of

Immigrations and Customs Enforcement agent Justin Myers, who was

present during the execution of a state search warrant for

defendant’s computer, and who has viewed many of the images and

videos contained on that computer, provided ample justification

for the finding that it is at least probable that defendant

committed these two offenses. Agent Myers’ testimony also

supported the inference that these images were obtained through

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use of a file-sharing program know as Limewire and that the

images traveled by means of interstate commerce. Although

defendant did not concede that the Court’s probable cause finding

triggered a rebuttable presumption that he be detained during

trial, based on the plain language of 18 U.S.C. §3142(e), the

Court finds otherwise. Thus, the United States’ request for

detention is evaluated under the following standard.

Legal Standard Applicable. The United States' request

for detention is based primarily upon the presumption that

arises under 18 U.S.C. §3142(e) for persons charged with serious

drug offenses, certain firearms offenses, and certain offenses

involving minor victims, including violations of 18 U.S.C.

§2252(a)(2). That statute states, in pertinent part, that:

 Subject to rebuttal by the person, it

 shall be presumed that no condition or

 combination of conditions will reasonably

 assure the appearance of the person

 as required and the safety of the

 community if the judicial officer

 finds that there is probable cause to

 believe that the person committed an

 offense for which a maximum term of

 imprisonment of ten years or more is

 prescribed in the Controlled Substances

 Act (2l U.S.C. 801 et seq)...[or] an 

offense under section 924(c)...of this

title... or an offense involving a minor 

 victim [under selected statutes].”

Under 18 U.S.C. §3142(f), if detention is based upon facts

supporting a finding that no condition or combination of

conditions will reasonably assure the safety of any other person

and the community, such facts must be proved by clear and

convincing evidence. However, if detention is based upon a

finding that no condition or combination of conditions will

reasonably assure the appearance of the person as required, proof

by a preponderance of the evidence is sufficient.

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 The proper effect to be given to this rebuttable

presumption is discussed in United States v. Jessup, 757

F.2d 378 (1st Cir. 1985). There, the Court indicated that

the presumption shifts the burden of producing evidence to

the defendants, and also remains in the case even after the

defendants have satisfied their production burden. Further, in a

narcotics case, because the history of the statute indicates that

Congress had in mind a specific set of circumstances relating to

drug offenses which led to the adoption of the rebuttable

presumption, it is appropriate for a Court addressing the

issue of detention to determine how closely the facts of the

case before the Court parallel those of the "Congressional

paradigm," or profile of those drug offenders who present the

most serious risk of flight or danger to the community. That

paradigm, in brief, indicates a Congressional awareness of

the lucrative nature of drug trafficking, and the fact that

many persons engaged in that occupation have substantial ties

outside the United States. Consequently, even if a high

monetary bond is set for such persons, they are able, through

the use of proceeds derived from drug trafficking, to post

such bond, and are also able to flee the country because of

their contacts elsewhere.

 In order to attempt to rebut the presumption of detention

arising from charges under the Controlled Substances Act or other

applicable statutes, the defendant need not attempt to prove that

he or she did not commit the crime as charged. Rather, that

burden can be met by introducing evidence of other appropriate

factors as described in 18 U.S.C. §3142(g), including personal

history and characteristics relating to character, family ties,

employment, financial resources, length of residence in the

community, community ties, past conduct, history relating to drug

or alcohol abuse, criminal history, and record concerning

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appearance in court proceedings. If any such evidence is

introduced, the presumption cannot be used by the Court as

conclusive evidence that the defendant poses an unacceptable risk

to the community or that conditions will not reasonably assure

the defendant’s appearance. United States v. Dominguez, 783 F.2d

702 (7th Cir. 1986). However, that presumption still remains in

the case to be given whatever weight the Court deems appropriate.

The Pretrial Services report indicates that defendant has

lived in the central Ohio area most of his life, although he did

spend several years in Puerto Rico as a child. He has not been

employed for the last ten years, and although he claims he is

disabled, he has not been successful in multiple attempts to

obtain disability benefits. He has a short criminal record, most

of which consists of traffic offenses. He lives in a duplex with

his grandmother, mother, and 14-year-old son. He also has

another child in Columbus, who lives with defendant’s girlfriend. 

If released, he could reside in his mother’s side of the duplex

and be subject to electronic monitoring.

Agent Myers testified about a number of matters relating to

detention. He told the Court that defendant was attempting to

delete files when law enforcement officials approached his house

in order to execute the search warrant, that he had a camera

system that allowed him to see them approaching, and that he

locked himself in his bedroom when they entered the house and

would not come out voluntarily. When agents arrested him at his

girlfriend’s house on July 8, 2010, he refused for a long time to

come out of the house voluntarily. He admitted to the possession

of the child pornography on his computer. He had a number of

other storage media that contained pornography. Defendant

admitted to once taking nude photographs of a young female child

whom he was babysitting, although Agent Myers stated that those

pictures were not pornographic and defendant claimed they were

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taken with the child’s parents’ knowledge or permission. Those

images were also on defendant’s computer. Defendant had been

accused of sexually assaulting that child’s older sister and

showing pornography to her brother, although he was never charged

with any criminal offenses based on those accusations. Agent

Myers also related a fourth-hand hearsay statement about

defendant’s supposed plan to flee to Mexico and then to Puerto

Rico if he were released. Finally, on cross-examination, Agent

Myers acknowledged that defendant was arrested on state charges

on the day that the search warrant was executed (June 25, 2010),

released on bond the next day, and not re-arrested until July 8,

2010, and that in that interval there is no evidence that he

committed any new crimes or attempted to flee.

The Court gives no weight to the attenuated comment that Mr.

Baird may flee to Puerto Rico if released. It gives some weight

to the complaints lodged against him in 2007, primarily with

respect to the pictures taken, which are troubling in light of

his possession of a large amount of child pornography. His lack

of a significant criminal history and his family ties to this

area are factors in his favor. Overall, however, the Court

concludes that he has not rebutted the presumption in favor of

detention.

Mr. Baird is facing a lengthy sentence if convicted. His

possession of almost 200 separate images or videos of child

pornography show a pattern of criminal violations. His efforts

to delete files or to delay apprehension show some disregard for

authority. The evidence against him is strong. While this is a

close case, the Court is persuaded that there are no conditions

of release which would adequately guard against his resumption of

criminal activity, the risk he may pose to others, or the

potential for non-appearance. He does not have any employment to

return to, and the home environment proposed is essentially the

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same environment where the crimes were committed. Consequently,

the Court grants the United States’ request for detention and

detains the defendant without bond pending trial.

The defendant is advised of his right to seek review of this

detention order pursuant to 18 U.S.C. §3145(b).

/s/ Terence P. Kemp 

United States Magistrate Judge

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